Her Ordeal Is Over: An Asylum Chronicle
Rani Singh1 fled Punjab, India in 1992 after being raped by four police officers. She came to the United States with her daughter. The submission of her application for asylum in December 1992 officially began an ordeal that would last over 10 years and would involve two hearings before two different Immigration Judges, an appeal to the Board of Immigration Appeals, detention by the INS and a habeas proceeding in federal court. Yesterday, an Immigration Judge granted her application for asylum in the United States. This article chronicles her experience, discussing the events as they transpired.
At her asylum hearing in April 1998, Rani Singh claimed that she had been raped by four police officers in Punjab, India in 1992. The Immigration Judge did not believe her and suggested she take voluntary departure in lieu of a deportation order. The IJ also suggested to the INS attorney that she be incarcerated, although he had no authority to do so. As a result, Rani Singh withdrew her asylum application and accepted voluntary departure.
A week later she retained me to represent her in reopening the case. Another attorney previously represented her. Although I submitted ample evidence to explain any discrepancies that the IJ found, including a psychologist’s evaluation confirming that she was suffering from post traumatic stress syndrome, he denied the motion.
We appealed the denial to the Board of Immigration Appeals (BIA). The appeal is still pending. Recently, the INS in Newark, NJ issued an order to Rani Singh and her daughter, who is 18 years of age, to surrender for deportation.
Rani Singh and her daughter applied for a stay with the INS explaining that the case was still on appeal, but the INS did not accept the stay request on the ground that they did not have Indian passports.
Rani Singh surrendered on August 24, 2001 at Newark, NJ. My associate who accompanied her once again renewed their request for a stay on that day. The INS denied the request and detained her. Rani Singh got extremely traumatized and passed out. They did not allow her husband to speak to the emergency medical technicians, to answer routine questions about medical conditions, even though Rani Singh was unresponsive.
The INS admitted her to a hospital under its custody. Later that evening the deportation officer called my associate to inform her that they found a knife on her. Rani Singh is a Sikh woman who was wearing the traditional ceremonial dagger. Although this was explained to the INS deportation officer, he said that they might call the New Jersey police to charge her with possession of a deadly weapon.
On August 29, 2001, the BIA issued a stay against her removal pending resolution of the appeal. However, the INS deportation officer stated that he could still keep her detained even though there was an order staying her removal. He once again reminded us that she had a knife on her. In fact, the supervisory deportation officer told us that she has given the INS a great deal of trouble and cost them a lot of money to hospitalize her. He too reminded us that she had a "deadly" weapon in her possession. After convincing the INS deportation officer that she was not in any risk of absconding, and was a highly traumatized woman because of her past persecution, they agreed to release her if she posted a bond of $50,000 and was able to produce a valid Indian passport.
Rani Singh can simply not afford to place a bond of $50,000, although the Indian Consulate in New York has agreed to look into issuing an emergency travel document, but has yet to issue the document. However, the Indian Consulate will only issue an emergency document if Rani Singh’s deportation is imminent. Since the BIA issued a stay, her deportation is not imminent at this point of time, according to a consular officer.
Rani Singh’s daughter surrendered on August 31, but was fortunately not put into custody. She has to report to the INS every month. To the credit of the INS officer handling the daughter’s file, she was very courteous and pleasant. Of course, it took a lot of courage and deliberation for the daughter to surrender, as the INS was not able to give us any assurance, prior to surrender, that they would not detain her.
I do hope that people will express solidarity with Rani Singh. She is being detained at a correctional facility for people convicted of crimes, rather than an immigration detention facility, and is extremely distraught. Her family is also devastated. She was unable to present her asylum claim properly at her hearing in April 1998. She was asked questions in an all male courtroom such as, "Why should the police rape you?" It was also difficult for her to talk about the injuries that she had suffered as a result of being raped. While she is presently being detained, INS deportation officers have been completely insensitive to her trauma and perceive her as a troublemaker who possessed a "deadly" weapon.
We filed a writ of habeas corpus in federal court, and argued that Mrs. Singh’s prolonged, possibly indefinite detention violated her right to be free of arbitrary and indefinite detention. With the help of the U.S. District Judge, we were able to stipulate with the U.S. Attorney’s office and agree that the bond amount be reduced to $25,000. In addition, the requirement that Mrs. Singh produce a valid Indian passport was waived. Days later, Mrs. Singh was released from custody, and was able to rejoin her husband and two daughters.
After securing Mrs. Singh’s release from detention, we focused our attention on the appeal we had filed with the Board of Immigration Appeals (BIA), seeking to reopen Rani Singh’s deportation proceedings so that she could pursue her asylum claim. The BIA had notified our office that we could submit additional briefs in support of the appeal.
In our brief, we argued that the Immigration Judge (IJ) committed legal error and an abuse of discretion in refusing to grant the motion to reopen the proceedings. The legal standard governing such motions is that either party in a deportation proceeding may file a motion to reopen the proceedings if the motion contains new and material evidence that was either not available at the prior hearing, or could not have been presented at the prior hearing. When we initially filed our motion with the IJ, we had provided a detailed affidavit from Mrs. Singh that explained some of the seeming inconsistencies in her testimony. In addition, we had supplied an evaluation from a licensed psychologist specializing in treating victims of sexual assault, fluent in Mrs. Singh’s native language, who asserted that Mrs. Singh suffers from Post Traumatic Stress Disorder. However, the IJ simply had not taken this evidence into consideration when he refused to reopen proceedings. This, we argued was an abuse of discretion and erroneous. In addition, we pointed out that this evidence could not be presented at the initial hearing, because the atmosphere in the court was hostile. For instance, the IJ had stated during the hearing that he would recommend to the INS District Director that Mrs. Singh be detained during the course of any appeal.
In addition to our brief, an amicus brief was submitted collectively by Sakhi for South Asian Women, Sanctuary for Families’ Center for Battered Women’s Legal Services, The Sikh Mediawatch and Resource Taskforce and the South Asian Action and Advocacy Center. That brief was supplemented with voluminous supporting documentation, including a statement from a licensed social worker with expertise in gender-based asylum claims who also examined Mrs. Singh and also concluded that she suffers from Post Traumatic Stress Disorder.
The BIA sustained our appeal, granted the motion to reopen, and remanded the record to the Immigration Court for further proceedings. In a decision that essentially agrees with our analysis, the BIA found that Mrs. Singh “was unfairly pressured to withdraw her persecution claim,” and that the IJ’s statements “appear to have coerced the respondent to act contrary to her actual interest in seeking asylum.” Accordingly, the BIA concluded that Mrs. Singh is not bound by her hearing concessions.
The BIA recognized that Mrs. Singh was in fact deprived of an opportunity to present her asylum claim properly. This recognition demonstrates the importance of providing all foreign nationals who are in deportation or removal proceedings with the ability to pursue their claims and the proper avenues for appealing erroneous decisions.
Interestingly enough, a three-member panel of the BIA decided Mrs. Singh’s case. However, the proposed new changes that the Attorney General has recommended would eliminate three-member panel review of appeals, replacing them with single-member review, except in certain circumstances. The proposed replacement of the three-member panel with single-member review has drawn criticism from many immigration advocacy groups and individual practitioners, who believe that it will serious undermine and jeopardize comprehensive, thoughtful and scrupulous review. Mrs. Singh’s case illustrates the importance of the review process and the importance of allowing respondents to present all the relevant facts, even at the appellate level, to ensure that all courts, including administrative ones, adhere to the principles of due process and fundamental fairness.
Our office has represented Mrs. Singh since 1998, a week after her first hearing before an Immigration Judge (IJ) in which she was coerced into withdrawing her asylum claim. The Board of Immigration Appeals reopened her immigration proceedings in 2002. Her case was assigned to a new IJ after the original IJ granted our request to recuse himself from the case.
By the second hearing, the record of proceedings in Mrs. Singh’s case had become a small mountain of documents, briefs, expert opinions and transcripts. The IJ acknowledged his lack of expertise in dealing with the trauma of rape, but made an effort to provide an environment that was not hostile or intimidating. At our request, the IJ arranged for a female interpreter to be assigned to the hearing.
For over an hour, Mrs. Singh again testified about the torture she endured at the hands of the police in India. Although the events took place almost 11 years ago, Mrs. Singh still struggled to speak about it. The IJ also briefly questioned Mrs. Singh’s husband and daughter, neither of who could provide a first-hand account of what happened to Mrs. Singh, but who spoke of her emotional difficulty since that time. Mrs. Singh’s husband testified that since she arrived in the United States, she has been living a “half-life.”
In his decision, the IJ stated that he was convinced that this was a case of imputed political opinion; Mrs. Singh was raped by the police officers specifically because she provided support and shelter to Sikh separatists. He also stated that although she would most likely not face further persecution upon return to India, the past persecution was so severe as to warrant a grant of asylum. Counsel for the immigration service chose not to appeal the decision of the IJ.
Mrs. Singh and her family were, of course, very happy with the decision. They asked me to thank everyone who had worked on the case or contributed in any way over the years. However, it was clear that Mrs. Singh was mostly relieved – relieved that she would never have to testify again about what happened to her in India and relieved that her ordeal was finally over.
1Rani Singh is an assumed name to protect our client’s privacy.
About The Author
Christina B. LaBrie, Esq. is an associate attorney at Cyrus D. Mehta & Associates, PLLC. She received her J.D. from the New York University School of Law in 2000. Prior to joining the firm, she practiced immigration law, representing primarily asylum applicants before Immigration Courts, the Board of Immigration Appeals and federal courts.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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